5th Circuit reinstates Miss. jailers’ job-retaliation lawsuit

Three former Mississippi jailers fired after reporting the beating of an inmate by another guard have had their First Amendment retaliation claims reinstated by a federal appeals court.

The April 25 decision in Williams v. Riley could have an effect on other cases because it addresses the issue of when employees’ speech is made as part of official job duties and how such determinations are made.

The question is important for public employees nationwide after the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos, in which the justices ruled 5-4 that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

The Garcetti decision has led to the dismissal of many a public-employee First Amendment claim, as employers successfully argue that employees’ speech was simply part of doing their job.

Tammy Williams, Earl Russell and Cheryl Hambrick found this out after they filed their lawsuit. The case began in December 2004 when Williams and Hambrick witnessed a jailer beating an inmate at the DeSoto County Jail. They reported the incident to their supervisor, deputy sheriff Russell. Williams and Russell later contacted another superior and were told to write a report about the abuse incident. Hambrick wrote a report. The next day Hambrick, Williams and Russell were informed of misconduct charges, given a hearing and fired.

They filed a lawsuit in April 2005 against Sheriff James A. Riley, asserting a variety of claims. One claim was that officials retaliated against them for the exercise of their First Amendment rights.

In May 2006, the Supreme Court issued its decision in Garcetti. The sheriff and the other defendants then argued that the fired jailers’ First Amendment claims must be dismissed because their allegations were part of their official job duties to report abuse of inmates.

The defendants relied on the employer’s stated policy of the jailers’ job description, which included reporting unlawful activity by other officers. In March 2007, U.S. District Judge W. Allen Pepper Jr. granted the defendants’ motion to dismiss the plaintiffs’ First Amendment claims based on Garcetti.

“Despite plaintiff counsel’s best efforts, the import of this holding [in Garcetti] to the alleged facts in this case is impossible to circumvent since it is undisputed that part of the plaintiffs’ official duty description includes reporting unlawful activity of other officers,” Pepper wrote.

Pepper also wrote that he was “gravely troubled by the effect of Garcetti,” noting that “it allows no federal constitutional recourse for an employee of the State of Mississippi who is fired for reporting a fellow government employee’s misconduct.”

However, on appeal a three-judge panel of the 5th U.S. Circuit Court of Appeals reinstated the First Amendment retaliation claim in last month’s opinion in Williams v. Riley. The appeals court held that “it is error to rely solely upon an employer’s written policy in determining official duties.” In its per curiam opinion, the panel quoted from Justice Anthony Kennedy’s majority opinion in Garcetti:

“Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.”

The 5th Circuit added that there were questions of fact as to whether plaintiffs were required or expected to report such instances of abuse. The panel also said the plaintiffs could file another amended complaint to clarify their claims that their speech about inmate abuse was not made pursuant to their official job duties.

The case carries potential significance in the area of public employee First Amendment jurisprudence for at least two reasons. First, it shows that lower courts take seriously Justice Kennedy’s admonition that “official job duties” are not exclusively determined by job descriptions or policies. Second, it requires courts to focus on the practical realities of the workplace and employee duties, as opposed to employers’ recitations of Garcetti.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

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The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

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1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

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State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.